Wednesday, April 02, 2014

South Nairn appeal - disquiet from John Hart and Brian Stewart

A read for the serious students of South Nairn affairs regarding new information re traffic from the appellant. Click the read more tab to see text of documents now in the public domain. You can also browse 36 pages of documents on the DPEA site here.  (you have to do a search for the file first however - the site no longer gives URLs for individual pages. 

Dear Ms Kerr 

In continuation of Mr Brian Stewart's (Nairn West Community Council) email below, raising the issue of new material, namely there being............'new material (dated March 2014....), which has not yet been seen by any other party, and is presented as replacing and "superseding" the evidence submitted to the planning authority at the time the application was considered and refused.", may I refer the Reporter to EMAC Planning's Statement of Response to Procedure Notice No.2, Matter 1, page 7 para. 2.17 which states: 

"The appellants have also undertaken further assessments on this junction, together with the impact of any potential cumulative development and the details are provided in APP/Document PN1/1/1: Transport Technical Note (2014) - WSP UK Ltd and addressed in the appellants' hearing statement lodged in relation to Procedure Note No.1, Matter 1." 

We have searched the DPEA website for the "statement lodged in relation to Procedure Note No.1, Matter 1." and found nothing to fit that description nor the reference of the Transport Technical Note quoted in the above para. 

We would regard this very much under the Appeal Guidelines as "new information", which has not been previously referred to and which the Reporter specifically ruled out as being not material. We would be grateful if this information could be made public asap and respectfully suggest that it should certainly not be delayed until the 9 Apr deadline. 

Yours sincerely 
John Hart

Dear Ms Kerr 

You copied to us and others the exchange of emails between you and Karen Lyons of the Highland Council which was posted on the DPEA website on 28 March. I have naturally shared this with my CC and NRCG colleagues. 

It appears from your message and from a brief look at the regulations related to planning appeals that the reporter has wide discretion both in the interpretation and application of the rules, and in regard to the admissibility of evidence. All parties are apparently obliged to accept the Reporter's views. 

Nevertheless we wish to put on record with the DPEA our disquiet about the situation outlined in that exchange of emails. We have two specific concerns. One relates to substance, and the other to timing. 

On substance, the Appeal is in respect of the refusal of a planning application submitted, with supporting information, to the local authority. In considering the appeal, the Reporter necessarily has to scrutinise the application itself, the evidence that was submitted in its support, and the plans with which it is required to comply, in order to assess whether the decision by Councillors to refuse it (which was based on the information, advice and evidence available to them at the time) was justified. 

The Appellants now propose to introduce new material - in the form of "Additional Technical Notes" - which neither the Councillors who took the decision, nor the officials, nor the other interested parties, saw at the time of the decision and which they have not yet seen. 

This is however not supplementary information which expands on, or explains in more detail, the existing 
application. It is not evidence related to the content of existing local plans or official planning guidance This material is new (dated March 2014....), has not yet been seen by any other party, and is presented as replacing and "superseding" the evidence submitted to the planning authority at the time the application was considered and refused. 

This represents a material change to the application dossier. In plain language, it moves the goalposts. It means that the material now being tabled by the Appellants is not that which accompanied the application that came forward, which was the subject of public consultation, and which was decided upon at PED Committee. 

It seems neither logical nor reasonable for the evidence on which a planning application is based when submitted, to then be rewritten - or "superseded" - when that same application is tabled for review at Appeal. The submissions of all other parties are based on the application and supporting material as submitted to the planning authority, and on existing policy guidance, local plans and research guidelines. 

The other point of concern is about timing. The local planning framework and guidance has been in place for 
months, indeed years. This application has the subject of local consultation since 2008 and was first submitted, with supporting documentation, in February 2011 and resubmitted in November 2011. So all parties have been aware of the proposals for five years or so, and have had more than a year to study, evaluate and comment on the specific details. 

Now the Appellant proposes to bring forward new material on a core issue. Your email indicates that the Reporter regards approximately two weeks as sufficient for all other parties to examine and consider this new evidence. 

This may perhaps be acceptable - or possible - for professional planners or consultants and experts on the 
subject. But national policy, and government guidance, are intended also to give local communities (whose members are not planning officials nor experts  but ordinary citizens) proper and reasonable opportunity to engage fully and fairly in the planning process. 

We do not consider that the admission of new and unfamiliar evidence barely two weeks ahead of an Appeal Hearing is fair or reasonable. We are surprised that the Reporter seems minded to allow it. 

If the Appellants now regard their application as unsustainable unless it is shored up by new material from different expert advisers prepared after the refusal decision, then - with respect - we would have expected the Reporter to decline to consider such evidence. Rather we would expect the existing application to be withdrawn (or the Reporter to uphold its refusal) and the Appellants to resubmit a new or revised application for proper and considered public and local scrutiny based on whatever new, different and more robust supporting evidence they are able to offer. 


Brian Stewart Nairn West CC

Dear Mr Stewart and Mr Hart 

Thank you for your emails of 30 March and 1 April regarding procedure issues which were passed to the Reporter. Firstly, the Reporter notes that the appellant has not raised a new matter as defined in the Planning Acts and Circular 4/2013: Planning Appeals. The Appeals Regulations (Regulation 3(6)) also allow further documents to be lodged by the appellants as part of the Hearing process. 

However, the Reporter has now had the opportunity to review all the Hearing Statements lodged by parties. He has some concerns that a number of Statements make significant references to key transport assessment documents previously lodged by the appellants but which are now to be superseded by new technical documents due to be lodged by Friday (4 April). He will consider the content of these new documents early next week and decide then if there is any requirement to vary the previously intimated Hearing arrangements. I will advise all parties at that time if the arrangements are to be changed. 

Yours sincerely  



Insomnia duo said...


Anonymous said...

Well done to JH and BS for questioning the status and implications of 'new material'.
It is essential that non-expert representatives of the local community get a proper and reasonable opportunity to engage fully and fairly in the planning process.